Lesson 4: Legal Independence and the Rule of Law

Assessment

Activity 1: The Rule of Law

What is the Difference Between Laws and Rules?Rules are different from laws because rules are not enforced by the courts. Laws also apply to everyone in society at all times.

Why do we Have Laws?We have laws to regulate how we live in society, according to the principles of reason and fairness. We need laws to live peacefully together and, as society grows, we need more laws to control and limit people’s behaviour.

Who is Protected by Laws? Who is Bound by Laws?The law protects everyone in society, and we all have to abide by laws.

Other answers to the questions on the handout will vary.

Activity 2: Legal Independence Quiz Game

This game does not need to count for marks. If you wish, students with the correct answers may be given a small prize, such as candy. Make sure you go over the answers at the end to ensure that all students understand.

All people are equal under the law without discriminationWhat is the rule of law?

People who protect the rights and freedoms guaranteed by the CharterWho are judges and lawyers?

There must be a division among those who make the law, those who interpret and apply it and those who enforce itWhat is the Separation of Powers with the State?

Judges are free to make their decisions without interference or influence from any source including governmentWhat is judicial independence?

Judges make decisions based on the evidence and the law and not by having an opinion.What is judicial impartiality?

Judges are responsible to the courts and their decisions can be examined by higher courtsWhat is judicial accountability?

A judge may not hear a case because of a prior connection to the partiesWhat is a conflict of interest?

A lawyer can put his or her client’s interests first without fear of constraint or punishmentWhat is lawyer independence?

One aspect of the duty of loyalty to the client that is very important to lawyer-client communicationWhat is privileged communication or confidentiality?

Where public interest in preventing a crime takes precedence over public interest in protecting lawyer-client communicationWhat is an exception to privileged communication between a lawyer and the client?

The government does not decide who can become a lawyer, nor can it prevent a lawyer from practicing law or representing a particular clientWhat is a self-regulated legal profession?

Activity 3: Legal Independence Video

Since the discussion questions on Handouts 5-8 will be reviewed as a class during the activity, it is not necessary to mark them. You may, however, have students submit them for completion marks.

First Discussion: Scene 2 – School Field

Why do we have laws?We have laws in order to have a functioning society.

Why must the rule of law be the same for everyone?It must be the same for everyone so that everyone is treated equally under the law. How you are treated under the law does not depend on who you are or what work you do.

In this scene, was the Youth Gathering Act broken?Yes. In the strict interpretation of the law, the students were gathering illegally.

What do you think of this new law? Explain.Answers will vary.

How do we change a law that is flawed? Does violence or protest work?In Canada, we may be able to change laws through peaceful protest if the government is sufficiently affected by such protest. Otherwise, we can challenge a law through the courts. If the challenge is successful, the government must amend the law. Violence is not an effective way to amend laws because it results in the law-breaker being charged with an offence.

Do you see any difficulties in enforcing the act?No. Many students, however, will be charged under it if no discretion can be used by the police while enforcing it.

What safeguards are built into the justice system regarding flawed laws?Judicial independence and lawyer independence will assist in the review of the constitutionality of a law. The appeal process in the courts also provides a safeguard for the person charged with breaking the law.

Just because we don’t like a new law, does that mean that we don’t have to obey it?No, if the law is in effect it must be obeyed even if it may not be a sensible law.

Can individuals refuse to obey a law without consequences?No. If an individual is charged with breaking the law and found guilty, there will be consequences. The charge itself is a consequence, as the person has to come to court, hire a lawyer and take time to present his or her case.

Did the students have a right to be annoyed when the officer searched their backpacks?Answers will vary.

Did the students respond the right way? If not, what could have they done differently?Answers will vary.

What is the role of the police officers in this situation?Their role is to enforce the law or use discretion when investigating the incident.

Do the students have a factual defense to this charge?No. Strictly speaking, by gathering after the curfew they are breaking the law.

What can the students do if this is a bad or unfair law?Students can express their feelings in the appropriate way and appropriate setting by challenging the law in court.

Prediction: What do you think is going to happen next?Answers will vary.

Second Discussion: End of Scene 2 - School Field

Did your prediction match what followed in the video?Answers will vary.

What are the consequences for breaking a law?The consequences for breaking a law could vary but a charge and a courtappearance are likely.

Do you think the arrest was justified under the Youth Gathering Act? Why or why not?Yes, the students were gathering illegally. However, they may have avoided the arrest if they had acted differently. By doing so, they may have been told to disperse or given an appearance notice to come to court rather than being arrested.

Do you think all three of the students should have been arrested? Why or why not?Answers will vary. However, there might have been other options depending on how the police perceived the situation. Justin was the most aggressive so he may have been arrested while the police could have given Michael and Candace a Notice to Appear.

Do you think the Youth Gathering Act is fair?Answers will vary. Some may say that where public security is threatened, laws such as this that restrain gatherings will protect public safety. Others may say that it is unfair to arbitrarily make it illegal for people who are nothing more than a group of friends to “hang out.”

How is the validity of a law challenged?Challenges may be made to laws by making arguments to a court. In Canada, the federal government has authority to pass certain laws, and the provincial governments have authority to pass others. Challenges can be made if, for example, the federal government has created a law that only the provincial governments can pass. Other challenges can be made to argue that the law, as passed, is contrary to the Canadian Charter of Rights and Freedoms. Where challenges to laws are made, courts ultimately rule on the validity of the laws passed by the governments.

Third Discussion: End of Scene 3 - Police Interview Rooms

If you were one of the accused, what characteristics would you want your lawyer to have?You would want your lawyer to be independent from influence from any source so he or she could fully represent you.

What does the term “lawyer independence” mean?It means that lawyers are able to act in their client’s best interest without fear of interference from any source.

Do legal aid lawyers treat their clients differently because they are paid by the government?No. A legal aid lawyer has the same duties to his/her client as one who is paid directly by the client.

Whose interests should a lawyer represent? Why?The lawyer must represent the interests of his or her client. This concept is essential to preserve Canadians’ fundamental rights and freedoms in a fair judicial system.

Can a judge or government interfere with the relationship between a lawyer and client?Neither should interfere with the relationship between a lawyer and a client. To do so would infringe on lawyer independence, which is the client’s right to be represented by a lawyer who acts on the client’s behalf free of influence by the state or the court.

If you were one of the accused, what characteristics would you want the judge to have? Why do we need judges?The accused would want a judge who is intelligent, fair, independent and impartial.

What do we mean when we say the judiciary is independent? From whom?We mean that judges are not influenced to make a decision in a particular way by any person or group. They are independent from government influence as well.

Why is it important to have an independent judiciary?Judicial independence is necessary to protect the rule of law. Independence permits a judge to view the facts of the individual’s case in light of what the law requires. The judge does so regardless of the wealth of the individual or his/her influence in society. It is essential that the state or government or any person or group not influence the decisions of a judge.

Why is it important for a judge to be impartial?It is the constitutional right of every Canadian to have his or her legal issues decided by a fair and impartial judicial decision-maker. Judges are required to listen to both sides of the case and then to make impartial, fair decisions based on the evidence and the law. If a judge was influenced to decide in a particular way, he/she would be unfair to the competing interests in the case.

Should your social or financial status make a difference to how a judge treats you in court?No. All should be treated equally under the rule of law.

Why should every person be treated equally by the judiciary?Each person should be treated equally in order to maintain the rule of law and the protections under the Charter of Rights and Freedoms.

What do you think the judge should consider when making his or her decision? Should a judge consider the views of government or public interest groups?The judge should base the decision on the particular facts of the case being heard and then apply the law to those facts.

Why do we need judges to protect our rights from arbitrary arrest and our rights to legal representation and to a fair trial?Judges are necessary in order to guard against the arbitrary governance of those making and enforcing the laws.

How is judicial independence relevant to Michael?Even though judges are paid by the government, the government cannot easily
fire a judge because it disagrees with a judge’s decision. This ensures that a judge is able to decide a case based on his or her interpretation of the law rather than on what the government may wish the outcome to be.

Judges are therefore able to rule unconstitutional laws passed by the government are invalid without fear that the government will fire or punish them for their decisions. Thus, Michael can be assured that his defence, as presented by his lawyer (that the law is invalid), can be considered by the judge free of influence by the state.

Final Discussion: End of Scene 5

Do you think the right decision was made? Explain why or why not.Answers will vary.

What was the basis for the decision?The Youth Gathering Act was found to be unconstitutional.

If the lawyers had not argued that the law was unconstitutional, do you think the verdict would have been the same? Why or why not?The verdict would have been different because, based on the strict interpretation of the law, the accused would have been found guilty.

What do you think Michael, Candace and Justin learned from their experience?They learned that judges are independent, fair and impartial; that race or ethnicity has no bearing on the outcome of a case; and that a criminal record doesn’t automatically affect the outcome of a case. They also learned about a lawyer’s duty and responsibility to the client and that a lawyer acts impartially for the client in a manner that is independent of any other interests.

They also learned that a client can retain a lawyer to advise him or her on the validity of a law. If reasonable arguments exist to support the challenge, those arguments can be presented to a court which can rule on the law’s validity.

In addition, the three learned that lawyers can challenge a law - even a law that is of crucial importance to the government - without fear of retribution by the government. Judges can then rule on the validity of a law without fear of retribution by the government because they cannot be told how to decide a case. The decision of a judge is based on the law and nothing else.

Perhaps Candace did not learn anything. Like TS Elliott said, she “had the experience but missed the meaning.” She still thinks that she should have been treated differently because of her dad’s connections.

Why is the rule of law an important part of our justice system? Explain your answer incorporating the terms judicial independence and lawyer independence.The rule of law is a necessary safeguard against the abuse of power by the state. It is a protection from arbitrary governance.To be effective, the rule of law requires not only the submission of all to the law, but also the separation of powers within the state. Because the rule of law is needed to control the powers of the state, there must be a division amongst those who make the law, those who interpret and apply it, and those who enforce it. Judicial independence and lawyer independence are required to protect the rights and freedoms of citizens.

Activity 5: Test Your Knowledge

This activity is meant to assess how much your students have learned in this lesson. Students can submit Handout 11: Legal Independence Test for marking.

What is the rule of law?The rule of law is the fundamental principle that all people are equal under the law. No one is above the law.

Why are judges crucial to the operation of the rule of law?The role of judges is to protect the rights and freedoms of citizens under the rule of law.

Why are lawyers crucial to the operation of the rule of law?Lawyers protect the rights and freedoms of citizens under the rule of law and are essential to a strong and functioning system of justice.

How does the rule of law affect the use of power by the state?The rule of law guards against arbitrary governance.

What is judicial independence and why is it important?Judicial independence is necessary for the protection of the rule of law where everyone must obey the law and where everyone is treated equally under the law. It is essential that the state, government or any person or group not be permitted to influence the decisions of the judiciary.

Give an example of a judge acting independently.An example would be where a judge declares a law made by the legislators to be unconstitutional. This would be an indication to Parliament that the law should be changed.

Why is it important for a judge to be impartial? Explain using an example.It is the constitutional right of every Canadian to have his or her legal issues decided by a fair and impartial judicial decision-maker. Judges must listen to both sides of a case and make impartial, fair decisions based on the evidence and the law before them in the case. If a judge were influenced to decide in a particular way, that could be very unfair to the competing interests in the case. An example of this would be where one of the parties to the action is the government. The other party would be compromised if the judge were unduly influenced by the government to rule in its favour.

How are judges accountable?Judges are accountable for their decisions through the appeals process. Their decisions can be reviewed and overturned by a higher court.

Give an example of a situation in which a judge may have a conflict of interest.The judge’s brother is testifying as a witness in a case before the court. This may make the accused and the judge very uncomfortable so it would be disclosed and the judge would likely excuse himself or herself from the case.

What does the term “lawyer independence” mean?It means that lawyers are able to act in their client’s best interest without fear of interference from any source.

Why does the bar need to be self-regulated?Lawyers should be self-regulated in order to maintain their independence from influence from any source. The government should not be responsible for deciding who is competent to practice law and who becomes a lawyer. Self-regulation carries with it the responsibility to appropriately sanction lawyers who do not properly discharge their professional obligations to ensure that the public is properly protected.

What duties does a lawyer owe to his or her client?A lawyer’s primary duty is to represent the client to the best of his/her ability. A lawyer owes a duty of loyalty to the clients. This duty includes keeping “privileged” communications confidential.

What are “privileged” communications? Are there any exceptions to privilege and if so what are they?Generally, all communications between a lawyer and the client for the purpose of obtaining or giving legal advice are “privileged” in that the lawyer cannot be compelled to disclose them to anyone, not even the government. An exception to privilege would be a situation of a crime involving death or imminent and serious bodily harm. In such a case, the public interest in preventing a crime would take precedence over the public interest in protecting lawyer-client privilege.

What does the term “disbarred” mean and what is the role of the Law Society if a lawyer is disbarred?If concerns exist about a lawyer’s conduct or competence, those concerns are investigated and adjudicated by the Law Society. The Law Society is empowered to fine, suspend, or (in the most serious cases) “disbar” a lawyer. If a lawyer is disbarred, his or her membership in the Law Society is terminated, meaning he or she may no longer practice law.

Why is lawyer independence important?Lawyer independence is essential to ensure a fair system of justice and to preserve Canadians’ fundamental rights and freedoms. It is important for a lawyer to be able to advance his/her client’s legal interests without fear of undue influence or control.

How does the money-laundering legislation mentioned in the handouts challenge lawyer independence?If the legislation requires a lawyer to reveal privileged communications or the possibility of client misconduct, lawyers could become agents of the state acting against their clients. Clients may no longer tell their lawyer everything the lawyer needs to know in order to properly advise the client for fear that the lawyer would be required to divulge that information to the state.